A mining and exploration retrospect for February 2 to 8, 2013

A Quebec rescue team recovered the bodies of two quarry workers on Saturday, four days after a landslide buried them in an open gravel pit. Daniel Brisebois and Marie-Claude Laporte worked for Maskimo Construction at L’Epiphanie, about 50 kilometres northeast of Montreal.

On Tuesday Eastern Platinum TSX:ELR reported the death of Allan Swartz, a shift supervisor at the Crocodile River Mine in South Africa, after he fell through an empty ore pass.

Five workers from Braeval Mining’s TSX:BVL Snow Mine project in northern Colombia remain missing after being abducted by the National Liberation Army (ELN) on January 18.

Supply convoys were prevented from reaching the site by about 16 protestors from the native community of Attawapiskat, 90 kilometres away.

Vague definitions give aboriginals enormous power

In Saturday’s Globe and Mail, columnist Jeffrey Simpson rather candidly addressed the vague but powerful native rights that have created a “de facto veto” over resource development in Canada.

Native demands, he wrote, stem from “treaty rights, however defined, and from aboriginal rights, however defined, in the Charter of Rights and Freedoms.” In its 1997 Delgamuukw decision, Canada’s Supreme Court established the duty to consult natives before working on Crown land. But the court didn’t define the consultation process except to say, in effect, “the stronger the aboriginal [land] claim, the more serious the consultation,” Simpson stated.

Consequently “it’s obviously in the interests of aboriginals to make the most sweeping initial claims possible, whether they have much justification in history, current reality or law. As long as the claim is there, aboriginals can interpret Delgamuukw as giving them a de facto veto, even if that isn’t what the ruling said.”

In a later court ruling, “once again, the meaning and reality of ‘consult’ was left vague, perhaps necessarily so, since how can one define a process of consultation that would be agreed to by all parties. In practice, what ‘consult’ means to aboriginals is ‘we must agree.’”

Most recently, a December decision from the Yukon Court of Appeal declared that the territorial government must consult and “accommodate” the Ross River Dena Council even before very early-stage prospecting in the Ross River area. The ruling is considered to have strong repercussions for other jurisdictions as well.

“Even before a company does anything, the government’s obligation to consult kicks in. From now on—in ways yet to be determined—governments have to consult aboriginals before anything is done that might some day, somehow, have an impact on whatever land they might claim, or have claimed, even if such claims haven’t been tested or resolved,” Simpson wrote.

The Yukon government may appeal the decision. But Simpson’s conclusion might imply that judges already have their minds made up.

“Aboriginals must be delighted with goalposts moving closer all the time toward their conception of consultation as approval by them of anything and everything that might occur on land over which they claim rights, proven or unproven.”